When a child support debtor has been cited for contempt and received a suspended jail sentence for failure to make court-ordered support payments, is a purge hearing to determine whether some or all of the suspended jail sentence should be actually imposed a civil or criminal proceeding?

Does an indigent person who faces incarceration for failure to purge contempt in a child support action have a due process right to representation by a court-appointed attorney at the purge hearing?

BACKGROUND: As a condition of his divorce, a court ordered Michael Liming to pay child support for his two minor children. After Liming missed payments, the Athens County Child Support Enforcement Agency (ACCSEA) asked the court to find him in contempt of the child support order. At a hearing where Liming was represented by an appointed attorney, the trial court found him in contempt and sentenced him to 30 days in jail, however the court suspended the sentence and gave Liming an opportunity to purge the contempt if he paid a specified amount of support on a timely basis thereafter, including a specified amount toward an arrearage.

Later, ACCSEA alleged the Liming had failed to comply with the conditions set by the court to purge his contempt, and petitioned the court to impose the previously suspended jail sentence. At the “purge hearing” to consider that petition, the court denied Liming’s request for court-appointed counsel, found that Liming had failed to purge the earlier contempt order, and ordered Liming to serve 10 days of his 30-day suspended sentence.

Liming appealed, arguing that the purge hearing was a criminal proceeding and therefore the trial court had violated his constitutional due process rights by denying his request to be represented by a court-appointed attorney at that hearing. The Fourth District Court of Appeals rejected Liming’s argument and affirmed the action of the trial court, but certified that its holding that a purge hearing is not a criminal proceeding was in conflict with a 2001 ruling by the Sixth District in a similar case. The Supreme Court of Ohio agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Liming assert that state and federal court decisions have defined a civil contempt proceeding as one in which a court uses its sentencing power to coerce a party to comply with an order, but imposes a sanction that can be suspended on condition of that party’s compliance. In this case, they say, the purge hearing was not intended to coerce Liming to make promised payments, but rather was held for the sole purpose of punishing him for past noncompliance by enforcing a previously imposed jail term that Liming could do nothing to prevent or avoid. Asserting that this fact effectively changed the purge hearing from a civil to a criminal proceeding, they argue that as an indigent defendant, Liming was constitutionally entitled to a court-appointed lawyer.

Even if the court should find that the purge hearing was a civil proceeding, Liming asserts that the trial court was still required to appoint counsel to represent him because the object sought by ACCSEA in that hearing was to deprive him of his fundamental constitutional right of personal liberty by putting him in jail, and the due process right to counsel extends to civil proceedings under that circumstance.

Attorneys for ACCSEA urge the court to follow the U.S. Supreme Court’s 2011 decision in Turner v. Rogers, which they say held that the Sixth Amendment right to counsel does not apply to child support contempt proceedings as long as there are alternative procedural safeguards to prevent errors. They point out that Liming had the benefit of appointed counsel during the 2008 hearing at which he was found in contempt of a child support order and sentenced to 30 days in jail as punishment for that offense, but was offered the chance to purge his contempt by meeting his support obligations in subsequent months.

They assert that because the subsequent purge hearing did not expose Liming to any new penalty, but merely found that he had failed to purge his previous contempt and removed the stay on part of a prior sentence he had received while represented by counsel, the purge hearing remained a civil proceeding and did not invoke a right to appointed counsel.

Contacts
E. Kelly Mihocik, 614.466.5394, for Michael Liming.

Keith M. Wiens, 740.797.2523, for the Athens County Child Support Enforcement Agency.

Does Posting Date and Time of Foreclosure Sale on Website Satisfy Legal Requirement of 'Notice' to Mortgage Holder?

Does posting the date, time and location of a sheriff’s sale of a foreclosed property on a sheriff’s department website constitute “constructive notice by publication” to a party with an ownership interest in the foreclosed property, and if so, is such notice legally sufficient when the interested party’s mailing address is known to or easily ascertainable by the sheriff?

Was a form letter advising local attorneys that the sheriff was discontinuing the practice of mailing sheriff’s sale advertisements, and that information about upcoming sales would be “available” on the sheriff’s office website, sufficient to meet the due process requirement that interested parties must be given “notice by mail or other means as certain to ensure actual notice” prior to a property sale?

BACKGROUND: In 2008, After Michael Prater of Clermont County defaulted on a mortgage he had obtained from PHH Mortgage Corporation, PHH obtained a judgment of foreclosure on the mortgaged property and a court order that it be sold at a sheriff’s sale. The sheriff’s sale was initially scheduled for January 6, 2009, but was postponed at the request of PHH on that date and two other subsequent scheduled dates later in 2009. In each of those instances, PHH received an advance written notice from the sheriff by mail stating the date, time and location of the scheduled sale.

Near the end of 2009, the Clermont County sheriff’s office sent a form letter to local attorneys involved in pending foreclosure sales. The letter stated that the sheriff’s office had adopted a policy change under which, after Jan. 1, 2010, the sheriff would no longer mail a notice of each scheduled sheriff’s sale to parties interested in that case, but would instead post the dates, times and locations of all upcoming property sales on the sheriff’s website. The letter provided the URL (Web address) at which information about upcoming property sales could be accessed.

The sheriff subsequently set a new sale date for the former Prater property of April 6, 2010. The date time and location of the scheduled sale were posted on the sheriff’s website, but no direct notice providing that information was mailed to PHH or its attorney. The scheduled sale went forward on April 6, 2010 without a PHH representative in attendance to bid on its behalf. The property was sold to a third-party purchaser for significantly less than the total debt owed to PHH, and the sale was recorded by the clerk of courts.

PHH filed a motion in the Clermont County Court of Common Pleas to set aside the sheriff’s sale on the grounds that, as a party with an ownership interest in the property, PHH was deprived of its due process rights because it had not received legally required notice of the sale from the sheriff. The trial court upheld the sale of the property as legal and binding, ruling that the sheriff’s posting of information about the sale on his website, after mailing a notice of the change in notification policy to PHH’s attorney, had provided legally sufficient notice of the sale to PHH.

PHH appealed. On review, the Twelfth District Court of Appeals affirmed the action of the trial court, holding that requiring an interested party to access information about an upcoming property sale on a website did not impose a significantly greater burden on an interested party than requiring that party to open an envelope received in the mail. PHH sought and was granted Supreme Court review of the Twelfth District’s decision.

Attorneys for PHH point to the Supreme Court of Ohio’s 1993 holding in Central Trust Co. v. Jensen
that merely notifying a property owner about a pending tax sale of its property through “constructive notice by publication” was not sufficient to satisfy the owners’ constitutional right to due process. Instead, they say, Central Trust held that an owner whose address was known or easily ascertainable by the sender must be given “actual notice” of a property sale “by mail, or by other means equally reliable.” In this case, they contend, the sheriff’s listing of multiple pending property sales on a website is equivalent to the “constructive notice” given by publishing multiple legal notices in a newspaper, a standard that Central Trust specifically rejected as insufficient.

They argue that the Twelfth District erred in equating the effort required to open a single mailed notice sent directly to a property owner’s attorney with the effort required to proactively access and search a website database that might list dozens or hundreds of pending sales, and having to do so on a day-by-day basis in order to eventually spot the listing of the sale involving that owner’s property once it is posted. They point out that many low-income Ohio families do not own a computer or have ready access to the Internet, and those that do may not be familiar with the search methods necessary to locate a single listing in a large database. In effect, they assert, the sheriff’s unilateral policy change amounted to abandoning his legal burden to provide “direct notice” of pending sales to property owners “by mail or an equally reliable method” and unconstitutionally shifting that burden to property owners by adopting an electronic but still insufficient form of “constructive notice by publication.”

Attorneys for Clermont County Sheriff Scott A. Wolf urge the court to affirm the Twelfth District’s holding that, by mailing a written notice of his policy change to all attorneys with foreclosure sales pending in Clermont County that advised them where they could access information about future property sales, and posting that information on a medium that is universally accessible 365 days a year and 24 hours a day, the sheriff met his duty to provide the information necessary for property owners to protect their interests.

Does Waiver of Mandatory Fine Without Affidavit of Indigency Render Part or All of Defendant's Sentence Void?

ISSUE: After convicting an offender of a crime for which the law requires that a mandatory fine be included in the defendant’s sentence unless the defendant has demonstrated indigency, if a court enters a sentencing order that waives the mandatory fine despite the defendant’s failure to file an affidavit of indigency before the sentencing order is journalized, is the portion of the defendant’s sentence waiving the mandatory fine void?

BACKGROUND: In two separate cases before the Cuyahoga County Common Pleas Court, Robert Moore was convicted of multiple felony counts of drug trafficking and additional charges of drug possession, carrying concealed weapons and possession of criminal tools. Under R.C. 2925.11, courts sentencing defendants found guilty of drug-related felonies are required to include in the defendant’s sentence a mandatory cash fine specified in R.C. 2929.18, unless the defendant files an affidavit of indigency “prior to sentencing” stating that he or she is unable to pay the fine.

At Moore’s sentencing hearing, his attorney indicated that Moore was indigent and unable to pay the mandatory fines for his offenses, and stated that an affidavit of indigency would be filed with the court. In its August 17, 2009 sentencing entries for both cases, the court stated that court costs and fines, including mandatory fines, were waived “based on defendant’s affidavit of indigency being filed.” Moore’s attorney had not filed an affidavit of indigency prior to the date his sentence was journalized.

In September 2010, Moore filed a motion in the trial court seeking to vacate his sentence on the basis that an affidavit of indigency had not been filed prior to the court’s entry of its sentencing orders, and therefore the court’s waiver of the mandatory fines was invalid and his entire sentence was legally void because the court had omitted a mandatory element.

The trial court denied Moore’s motion and upheld his entire sentence as valid, holding that omission of the mandatory fines had not been an attempt by the trial court to disregard a statutory requirement, but rather was a good-faith mistake arising from the court’s reliance on defense counsel’s on-the–record promise to file the required affidavit.

Moore appealed. On review, the Eighth District Court of Appeals held that Moore’s entire sentence was not void, but vacated as void the portion of the sentencing orders waiving the mandatory fines. The Eighth District subsequently certified that its ruling was in conflict with a 2006 decision of the Ninth District, State v. Deloach. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for the state urge the court to reinstate the trial court’s ruling that none of its original sentence was void. They acknowledge that the court’s waiver of mandatory fines in the absence of an affidavit of indigency was an error, but point out that the statutes at issue grant a trial court discretion to waive those fines, and argue that because the court did not act beyond its jurisdiction or with the intent of disregarding a statutory requirement, its incorrect waiver does not rise to the level of an error that would render a sentence void.

If the justices should find that the improper waiver of fines was reversible error, the state urges the court to follow recent decisions in which it has held that a trial court’s failure to include a mandatory term of postrelease control or a mandatory driver license suspension in a defendant’s sentence voids only the part of the sentence that was contrary to law, but leaves the remaining properly imposed portions of the defendant’s sentence in place.

Attorneys for Moore urge the court to follow prior decisions holding that a criminal sentence that omits a statutorily required term is void and the defendant is subject to a complete new sentencing hearing.

Contacts
Daniel T. Van, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

Attorney Discipline

The Board of Commissioners on Grievances & Discipline has recommended that the license of Columbus attorney John J. Peden be suspended indefinitely for multiple violations of the Rules of Professional Conduct in his representation of seven different clients.

The disciplinary board found that Peden engaged in a pattern of misconduct involving the handling of client funds in his possession, including failure to deposit unearned fee advances in a dedicated client trust account, failure to maintain records documenting his receipt and disbursement of funds on behalf of clients, and failure to promptly pay or refund monies to which a client is entitled.

The board also found multiple violations of the state disciplinary rules that require attorneys to provide clients with competent and diligent legal representation, to respond promptly to client requests for information about their cases, to notify clients in writing about a prior suspension of his license and to notify clients that his professional malpractice insurance had been cancelled.

Peden has filed objections to the board’s findings and recommended sanction. His response sets forth extenuating circumstances for several of the client transactions for which the board made findings of misconduct, and urges the court to impose a period of probation or a six-month license suspension as the proportionate penalty for his rule violations.

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